US v. Stevens

[David Wagner]

"Fighting words" were not mentioned, but there was a cite to Chaplinsky, which I thought was sufficient to cover that (very narrow) waterfront. No?

The important point, it seems to me, was that the Court is not empowered to expand the list, not that it might be inclined to contract it.

David Wagner
Regent


> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Bernard Bell
> Sent: Wednesday, April 21, 2010 5:59 PM
> To: conlawprof at lists.ucla.edu
> Subject: US v. Stevens
> 
> Something to think about other than the President's next Supreme Court
> appointment.
> 
> Query 1;  In the opinion handed down yesterday (US v Stevens), Chief
> Justice Roberts appears to revise the listing of the standard
> categories
> of speech unprotected by the First Amendment (characterizing them as
> areas in which content restrictions on speech are permitted):
> obscenity,
> defamation, fraud, incitement, and speech integral to criminal conduct.
> 
> 
> The list appears to leave out "fighting words" (unless it is considered
> a sub-category of incitement, which I doubt).  Does that presage
> elimination of the "fighting words" category?
> 
> The listing identifies "fraud" rather than "commercial speech," which
> would appear to limit the breadth of that category of speech.  The
> greater power of the government to regulate commercial speech is not
> solely based on fraud, or even false statements.  The Court has also
> noted that commercial speech is more "hardy" and thus less in need of
> protection.
> 
> The last category of speech integral to criminal conduct is new as far
> as the traditional listing of speech categorically excluded from
> protection, but cures an omission from the standard Chaplinsky listing.
> Though I would have thought a better description might be speech that
> essentially constitutes conduct.
> 
>  Is this case destined to be the new Chaplisnky in terms of being the
> standard cite for the categories of speech that are given less
> protection?  Will the subtle changes in the listing be accepted by the
> Justices on an ongoing basis?
> 
> Query 2.  Is the US v Stevens opinion based on an unusually text-bound
> interpretation of the statute.  Much of the overbreadth argument
> focuses
> on the prospect that the statue could reach depictions of hunting.  It
> appears from some of the cites in the Alito dissent that the
> legislative
> history quite clearly indicates that members of Congress did not think
> that they were outlawing visual depictions of hunting.  Is the reliance
> on the text, rather than seeking assistance from legislative history,
> particularly appropriate when judging overbreadth.  And, of course,
> this
> does involve a criminal statute (which would itself justify a more
> textual approach).  Or did the majority of Justice simply accede to a
> textualist approach that the Chief Justice seems partial to (see
> Medellin v. Texas,128 S. Ct. 1346 (2008) involving enforcement of the
> Vienna Convention in state courts on collateral attacks from
> convictions)?  Or am I wrong about the cases indicating any textual
> predilictions of chief Justice Roberts?
> 
> Regards,
> 
> Bernie Bell
> 
> 
> Bernard W. Bell
> Professor & Herbert Hannoch Scholar
> Rutgers Law School-Newark
> 123 Washington Street
> Newark, NJ 07102
> (973) 353-5464 (voice)
> (973) 353-1445 (fax)
> bbell at kinoy.rutgers.edu
> 
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